Defending the Rights of Jewish Students: A Legal Primer

The insanity and Jew-hatred that have been on display since Oct. 7 have taught every American Jew that we must fight for our rights with as much energy and resourcefulness as we have fought for the rights of others in the past. In this fight, a central tool is the legal system.

Jewish students on college campuses are being subjected to bullying acts intended to intimidate and harass them because of their actual or imagined support for Israel. Thankfully, there are legal tools available which can and must be used to assert and defend the civil rights of Jewish students and faculty.

This essay will serve as a primer for the use of those legal tools by focusing on one key question: What kind of legal claims can be brought and against whom?

Like all Americans, Jews are entitled to protection from discrimination. The most robust anti-discrimination laws are usually those passed at the state and local level. State human relations commissions and other local bodies are usually more directly responsive to community demands. This means they typically include more protected categories of populations. Protected categories are identifiable groups of people who share a common characteristic which is vulnerable to discrimination.  Some of those identifiable groups are given special legal protection, although not all anti-discrimination laws provide protection for all the same categories. Among the categories protected  are ethnicity, shared ancestry and national origin — all of which cover Jews. Under most anti-discrimination laws religion is considered a protected class, but that isn’t the case for the federal anti-discrimination law which covers education: Title VI of the Civil Rights Act of 1964. This impediment was a real obstacle until recently, when Jews and Muslims were both recognized as being protected as members of an ethnic group or through shared ancestry.

Also at the Federal level, of course, is the U.S. Constitution. Jewish students are entitled to equal protection under the law.  For example, if a university forbids Jewish associations from engaging in a particular behavior, it must forbid that same behavior by any other religious group or face formal complaints. Unless relief is granted, it can be sued. If an arm of the government — or the recipient of federal funds — favors students who belong to any other religion over that of Jews, that makes a viable First Amendment/Free Exercise of Religion claim.

Jewish students and teachers and professors who claim that a hostile environment has been created and permitted to be maintained against Jews have successfully invoked this protection.  Enforcing the rules against Jews while ignoring violations of the same rules by people calling for the death of Jews is an insidious way to maintain a hostile environment for Jews and for Zionists. That is actionable under Title VI and such a claim can be brought in court by a private litigant such as a student at the affected institution, or by the Office of Civil Rights of the U.S. Department of Education.  But there are still other avenues to pursue this claim.

Jewish teachers and administrators can sue for employment discrimination.  Every ethnic, gender-based or religious group in American knows it has the right to go to court when employers, superiors or colleagues attack them because of their gender, religion or ethnicity.  As Bill Ackman – one of the prominent philanthropists who threatened to pull his millions from his Ivy League alma mater – has said, everyone would know the law had been violated if people held a public demonstration and cried “Tulsa, Tulsa, Tulsa” – calling for a repeat of the racist riot in that city in 1921 during which up to 300 African-Americans were murdered by their own countrymen.

Why then are cries for “Intifada, Intifada, Intifada” met with anything less than the same outrage?  And if cries for the murder of Jews are condoned or ignored rather than being publicly damned and compelled to stop, the institutions that tolerate such racism and discrimination are vulnerable to legal action.

One recently unsheathed weapon against Jews, which can create a wrenching experience for those subject to it, is when colleges use academic disciplinary proceedings to punish Jews and advocates for Israel.  People who speak up for Israel are being accused of harassing the enemies of the Jewish State simply by stating their positions in public.

Accusing Jewish students of violating rights by speaking the truth is another example of discrimination that is ripe for legal action. One graduate student I currently represent was charged with the “offense” of telling Hamas supporters who justified the Oct. 7th atrocities as “resistance” that they support baby killers.  To any well-informed reader of news from the Middle East since Oct. 7, this is obviously true.  But it was found to violate the university’s rule against “behavior which causes a serious disturbance of the University’s community or infringes upon the rights and well-being of others.”  The accusation was made by people who accused my client of supporting “genocide” by the Israeli army and the State of Israel. But the latter statement – obviously false – was not even viewed as problematic.

In another case, a professor I represent is accused of the “crime” of disagreeing with students advocating for a ceasefire in Gaza.  This too is charged as a form of harassment.  If found guilty, my client, a tenured professor, could be forced out of work.

These are clearly biased applications of university ethics rules. They are, by themselves, a form of discrimination, even if the result of the proceeding is not outright dismissal.  That needs to be attacked as such in court.

It is the Jews — not the Jew-hating professors — who need to be talking about academic freedom on American campuses, and about their right to speak about what they believe is true.

Denunciation of Jews for holding Jewish ideas, or for defending the Jewish people and Israel, is also legally indefensible. When a student at Yale submitted a story to the Yale Daily accurately describing Hamas’s actions in Southern Israel on Oct. 7, the paper edited out the facts and published the piece with the disclaimer that it had been revised to remove “unsubstantiated” claims that Hamas had raped and murdered Israelis. By accusing the student writer of publishing unsubstantiated rumors, the paper defamed its reporter. The Yale Daily issued a correction the next day retracting this baseless charge.  Had it not done so, a lawsuit would have been the right response.

Virtually everyone in America implicitly accepts banning certain words and phrases that are hurtful or deemed threatening to certain minority groups. At least as a practical matter if not as a legal certainty, for example, no one has the right to use the N-word in any academic institution.  Why then is it considered “free speech” for marchers to intone the eliminationist chant “From the River to the Sea, Palestine Must be Free” or the call for “Jihad” and to “Globalize the Intifada” – which effectively mean the murder of Jews?

The Biden Department of Education has recognized that Jews share an ethnic commitment to the land of Israel as the home of the Jewish people. Calling for the death or removal of Jews from “Palestine,” wherever that is and whatever its borders might someday be – is calling for the death of Jews.  You can’t get more antisemitic than that.

But here’s the rub: Jews have not yet been conditioned, and perhaps they don’t yet believe in their kishkes that they are entitled to demand the respect and the rights accorded all other American ethnic groups.

I have spoken to numerous Jewish parents and students since Oct. 7, many of whom know they are being victimized unfairly but still recoil at the idea of pressing their civil rights as Jews.  I remind them of a time before there were civil rights laws protecting Black Americans as an essential part of the American legal system.  Then, in the decades before the Civil Rights Act of 1964, brave Black American students, and their equally brave lawyers and allies, brought case after case into the courts and demanded, initially without winning but still without surcease, that American courts dispense justice to those demanding it and to which they were entitled as Americans.

The same must be true now for Jews. It is no longer enough to be smug about the strongly worded letter to the editor or the public condemnations or the retreat to hand-wringing in chat groups. It is time for Jews to take the legal gloves off and demand respect for their people and security for themselves and their children.

Both sides of the equation have to change – both the law and the Jews.  The law must become the same for the Jews as it is for everyone else. And Jewish students, with their families behind them, must now demand that their civil rights be respected just as are those of every other ethnic group. Harassment of Jewish students cannot be tolerated. Educating Jewish and non-Jewish students that the Jewish State is engaged in genocide is a race libel and no Jewish child or adult student should be forced to study in a school where this defamation is spread.

Denouncing Jews as a category of privileged whites who are oppressors also cannot go unchallenged, just as it can no longer be acceptable for Jews, who lived as a sovereign Jewish nation in the land of Israel for a thousand years, to be denounced as colonializing invaders of their own home.

Here is the hard reality:  Unless Jews everywhere are prepared to stop accepting the treatment that has, until now, been meted out by academia, things will only get worse. There will be more wild anti-Israel mobs like the ones pounding on the doors of the library for access to the Jewish students at The Cooper Union. Cooper Union staff who appear in the video of the attack did nothing to dispel the protesters who had permission to march outside, but not inside, the building. Instead, the school chose to barricade the Jews inside, just out of reach, but not out of sight or sound of the throng braying for their heads. Stunningly, the Jews were offered the “opportunity” to hide in the library’s attic.  No word on whether they were also offered copies of Anne Frank’s diary to read while they were there.

This outrageous scenario is a vivid portrait of academic administrators acting out of fear of a violent, rule-breaking mob.  Cooper Union utterly failed to fulfill its duty to protect its Jewish students.  That must be called out. And it cannot go unpunished.  Punishment will only come when legal provisions requiring the Jews’ protection, and their right to equal enforcement of the law, are raised and then enforced in court.

Every Jew who is victimized by this form of hatred must fight back.  The law is a crucial weapon in that fight.  We must learn to wield it and go boldly into the courts and fight, for our students and for our people.

Lori Lowenthal Marcus is the legal director of The Deborah Project, a public interest law firm that asserts and defends the civil rights of Jews facing discrimination in educational settings.